SZTHB v Minister for Immigration
[2014] FCCA 1790
•15 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTHB v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1790 |
| Catchwords: MIGRATION – Application in a case to set aside order dismissing application where no appearance by applicant – factors to be considered as to whether order to be set aside – whether arguable case – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(a) Migration Act 1958 (Cth), ss.36(2)(a) and (aa), 46(2), 476 |
| Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250 Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Minister for Immigration & Citizenship v SZNPG & Anor (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323; [2001] HCA 30 Nukala v Minister for Immigration & Anor [2013] FCCA 2322 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Singh v Minister for Immigration & Anor [2014] FCCA 960 |
| Applicant: | SZTHB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2191 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 July 2014 |
| Date of Last Submission: | 28 July 2014 |
| Delivered at: | Perth (by video-link to Sydney) |
| Delivered on: | 15 August 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms B Griffin |
| For the Second Respondent: | Submitting appearance, save as to costs. |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the applicant’s application in a case filed 24 June 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
SYG 2191 of 2013
| SZTHB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application in a case
By an application in a case filed 24 June 2014, the applicant applies for various orders, but firstly, and most importantly to the disposition of the application in a case, seeks an order that the orders made by this Court on 6 June 2014 in this matter be set aside. The other orders sought cannot be granted if the Court’s orders made on 6 June 2014 are not set aside.
Orders of 6 June 2014
The applicant did not appear at the hearing of this matter on 6 June 2014, and the Court made orders that:
1.Pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) the application be dismissed.
2.The applicant pay the first respondent’s costs in the sum of $3500 by 30 June 2014.
The orders were entered the same day as made, 6 June 2014.
Applicant’s affidavit in support of the application in a case
In support of the application in a case the applicant filed an affidavit affirmed on 24 June 2014[1] in the following terms:
1.That I filed application to the Federal Circuit Court for the Judicial Review of the decision of RRT on 17 September 2013
2.I attended the Directions of hearing on 20 November 2013 .I was told by the Bangali language Interpreter that final date of hearing is 13 June 2014. and the date of Amended application is 18 December 2013. At that time I was not told that the date of hearing may change from 13 June 2014 to 6 June 2014. In between I changed my residential address in January 2014 from 11-/10-12 Mary Street Lakemba to 4/36 Rossmore Ave. Punchbowl NSW 2196. When I changed my address I informed the Department of Immigrationa the same time . The Officer assured me that he will inform the Court about new Address. I accept that this is my fault. I should also inform the Court about new Address. I received a letter from the Government Solicitor that hearing is fixed on 6 the June 2014 . This letter was sent on my old address which I received on 9 June. 2014. I went to the Federal Circuit Court office to know about misunderstanding on 12 June.. The Court told me a letter was sent to your given address. 11/10-12 Marcy Street Lakemba NSW 2195.
3.I feel sorry for misunderstandings and miscommunication and appeal to the Hon Court to allow me to appear in Hearing on a New date.[2]
[1] “Applicant’s Affidavit”.
[2] Transcribed from the Applicant’s Affidavit without amendment.
Setting aside an order made in the absence of a party
Under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth)[3] the Court may set aside a judgment or order after it is entered if the order was made in the absence of a party.
[3] “FCC Rules”.
The criteria for setting aside an order made in the absence of a party are set out in various judgments of the Federal Court and this Court.[4] The criteria are as follows:
a)that there is an adequate reason for the non-appearance;
b)that there is no delay in making the application to set aside;
c)whether the party, in whose favour orders have been made, would be prejudiced by a new hearing in any respect which could not be adequately compensated for by a suitable award of costs or by the giving of security for costs; and
d)that there is an arguable case on the merits of the substantive application.
[4] Akpata v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 250; Nukala v Minister for Immigration & Anor [2013] FCCA 2322; Singh v Minister for Immigration & Anor [2014] FCCA 960.
Adequate reason for the non-appearance
The Minister for Immigration and Border Protection[5] conceded that there was an adequate reason for the non-appearance. The applicant had recorded the change of address referred to in the Applicant’s Affidavit with the Department of Immigration and Border Protection.[6] He did not however record the change of address with the Court. Notwithstanding that failure, the Minister was prepared to accept that there was an adequate reason for the non-appearance.
[5] “Minister”.
[6] “Department”.
Delay
There was a delay of 15 days between the applicant becoming aware on 9 June 2014 that there had been a hearing on 6 June 2014 and his filing of the application of 24 June 2014.
The delay is not inordinate in the Court’s view, taking into account that the applicant:
a)is in a foreign country;
b)does not speak English; and
c)is a self-represented litigant in these proceedings.
Prejudice
The Minister did not assert any particular prejudice at hearing, and there does not appear to be any prejudice which would not be able to be adequately compensated for by a suitable award of costs.
Arguable case on the merits of the substantive application
In order to deal with this criteria it is necessary to have regard to:
a)the applicant’s background and the claims he made;
b)the decision of the Refugee Review Tribunal;[7] and
c)the application to this Court for judicial review and the ground contained in it,
before determining whether or not there might be an arguable case on the merits of the substantive application.
[7] “Tribunal Decision” and “Tribunal” respectively. The Tribunal Decision is at CB 166-178.
The application for review
The substantive application seeks review of the Tribunal Decision affirming a decision of a Delegate[8] of the Minister to refuse the applicant’s application for a Protection (Class XA) visa[9] under the Migration Act 1958 (Cth).[10]
[8] “Delegate’s Decision” and “Delegate” respectively.
[9] “Protection Visa”.
[10] “Migration Act”.
The applicant’s background
By way of background the applicant:
a)is a citizen of Bangladesh;
b)arrived at Christmas Island by boat on 26 July 2012;
c)lodged an application for the Protection Visa on 19 January 2013, having been allowed to do so by reason of the Minister exercising his discretion under s.46(2) of the Migration Act;[11]
d)was refused the Protection Visa by the Delegate’s Decision on 22 March 2013;[12]
e)applied to the Tribunal for review of the Delegate’s Decision on 3 April 2013;[13] and
f)commenced these proceedings on 17 September 2013, the Tribunal Decision having affirmed the Delegate’s Decision on 21 August 2013.
[11] CB 22-88 and 101.
[12] CB 95-110.
[13] CB 112-117.
The applicant’s claims in relation to fearing harm if he returned to Bangladesh were based on the following reasons:
a)his refusal to join either of Bangladesh’s two major political parties, being the Awami League and the Bangladesh National Party,[14] thereby indicating to each party that he was not a supporter of the other;[15]
b)his fears (including a fear of being killed) of gangster gangs, including the Sharbo Hara Party;[16]
c)that both the Awami League and the BNP had previously inflicted beatings and other forms of harm upon him while living in his village;[17]
d)his refusal to join the terrorist organisation Naxal Bahini. His nephew was a member of Naxal Bahini and had previously beaten and humiliated the applicant, and if the applicant returned to Bangladesh he would be pursued by Naxal Bahini because he is “young, physically apt and intelligent having come from a Western country” and would be forced to perform their “dirty work”,[18] ensuring he would be powerful for some time but ultimately leading to him being killed. The applicant claimed that he was unable to seek protection from the authorities against the Naxal Bahini as the authorities were corrupt and only protected those in high positions. Further, as a returnee from a Western country he possessed certain characteristics that would result in him attracting adverse interest;[19]
e)that his half siblings and their families believed that he was rich after living in Australia and would harm him as they fear that he will reclaim property they took from him. The applicant claimed that his half siblings had forcibly expelled his father and the applicant’s family, the applicant’s mother being his father’s second wife, from his father’s property, and that his father had had to arrange alternative accommodation for the applicant’s family following this, but after his father’s death, the applicant and his four siblings were disinherited;[20]
f)that he had previously been beaten and humiliated by the general public in his village because he is poor as a result of his half siblings expelling his family from his father’s property;[21] and
g)there is a lack of official protection from gangster groups in Bangladesh.[22]
[14] “BNP”.
[15] CB 86-88.
[16] CB 87-88, 129-130 and 149.
[17] CB 87, 128-130 and 162-163.
[18] CB 163.
[19] CB 161-163.
[20] CB 129-130.
[21] CB 129.
[22] CB 87-88, 131-132 and 162.
The applicant claimed that he had worked on his family farm from 1997 to 2007,[23] and that in 2007 he left Bangladesh and lived in Malaysia as a legal resident for three years, and for a further two years illegally after the expiration of his visa. The applicant then says that he travelled to Indonesia at the end of April 2012, where he remained until travelling to Australia in June 2012.[24]
[23] CB 46.
[24] CB 40.
Tribunal Decision
The Tribunal, having considered the applicant’s account and country information, doubted that the applicant had suffered harm because of an imputed political opinion due to his refusal to join the Awami League, BNP or Naxal Bahini, for the following reasons:
a)there was no evidence before it indicating that young males are expected to join and support any political party, or that either the Awami League or BNP engaged in forced recruitment, and the Tribunal further commented that if this were the case it would have expected it to have been reported by NGOs and foreign government agencies as it would be a serious human rights breach;[25]
[25] CB 175 at para.18.
b)there was no evidence before it that the Naxal Bahini engaged in forced recruitment;[26]
c)the Tribunal put to the applicant at hearing that it did not expect that these groups would forcibly recruit and engage an individual who had no real allegiance to their cause, and did not accept the applicant’s arguments that loyalty was not required and that he would be pursued because he is young, intelligent, the eldest male in his family, and had spent time in Australia;[27]
d)the Tribunal also did not accept that the applicant was living in poverty, and thus vulnerable to physical harm from the Awami League, BNP or Naxal Bahini, noting that on the applicant’s own evidence, his father:
i)built a new house for his second family on land the father had purchased;
ii)continued to operate his farm;
iii)educated the applicant’s siblings; and
iv)funded the applicant’s travel to Malaysia;[28] and
e)the Tribunal was not satisfied that if the applicant returned to his village, he would be presented with demands to join the Awami League, BNP or Naxal Bahini, and harmed if he did not comply, nor was the Tribunal satisfied of the plausibility of his allegedly being made fearful by any mistaken belief that the Awami League, BNP or Naxal Bahini would approach him with demands that he join them.[29]
[26] CB 175 at para.18.
[27] CB 175-176 at para.18.
[28] CB 176 at para.18.
[29] CB 176 at para.18.
The Tribunal did not accept:
a)that the applicant was a member of a particular social group consisting of “poor males”, and did not accept that there was a real chance that he would suffer serious harm from the general public in his village for this reason. It was not satisfied that the applicant would be unable to work if returned or that he would not have access to his father’s estate;[30] and
b)the applicant’s claims that he would suffer harm from his family members, as it was not satisfied with the credibility of his claims of ill-treatment from them in the past, and found that the applicant’s claims regarding his nephew and his capacity to harm the applicant to be implausible and was not satisfied that this claim strengthened his case for protection.[31]
[30] CB 176 at paras.20-21.
[31] CB 177 at para.23.
On the above basis the Tribunal found that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act.[32]
[32] CB 177 at para.27.
The Tribunal also considered the applicant’s claims under the alternative complementary protection criterion in s.36(2)(aa) of the Migration Act. The Tribunal accepted that the applicant may be on poor terms with his half siblings, but was not satisfied that any treatment from them, or from members of his community, could reasonably be seen as amounting to significant harm.[33] The Tribunal therefore found that the applicant did not satisfy s.36(2)(aa) of the Migration Act.
[33] CB 177-178 at para.29.
The Tribunal affirmed the Delegate’s Decision.[34]
[34] CB 178 at para.32.
The ground of application for judicial review
On 17 September 2013 the applicant filed his application with this Court for judicial review under s.476 of the Migration Act. There was a single ground in the application as follows:
The Tribunal failed to assess my claims that I had been persecuted in Bangladesh as I refused to join with the Bangladesh Awami League, Bangladesh Nationalist Party and Naxal Bahini.
The applicant filed an affidavit in support of his application. That affidavit set out in its only paragraph as an asserted matter of fact the ground of the application as set out in the previous paragraph. The affidavit annexed a copy of the Tribunal Decision.
The applicant was given leave at a directions hearing on 20 November 2013 to file an amended application, affidavit and written submissions. No amended application, affidavit evidence or written submissions were filed by the applicant.
Consideration of the ground of application for judicial review
The sole ground of review cannot be made out by the applicant. That is because the Tribunal expressly considered the applicant’s claim to have suffered serious harm due to his refusal to join the Awami League, BNP and the Naxal Bahini. The Tribunal said as follows:
17.The Applicant does not claim ever to have been involved in overt political activity in Bangladesh, to have been a member or supporter of any political party, to have expressed any political opinion in public or, indeed, to have held any particular political opinion. Instead, his fear is said to flow from his refusal to join either of the country’s two major parties, the Awami League or the BNP, or the terrorist organization Naxal Bahini. This, it is claimed, will cause him to be imputed by each group with a political opinion unfavourable towards it leading each of them to inflict on him serious harm. His only remedy would be to join one or other of them, doing their ‘dirty work’ and ensuring that he would be powerful for some time but ultimately leading to his being killed. He claims the three organizations inflicted beatings and other form of serious harm on him for this reason while he was living in his village, able to do so because he was poor and powerless. These claims are unsubstantiated from any independent source.
18.Having considered these aspects of the Applicant’s account, together with the country information cited in the delegate’s decision record and the submissions to the Tribunal, I have doubts as to the credibility of his claim to have suffered harm because of an imputed political opinion in the past. This is for the following reasons:
·There is nothing in the information before the Tribunal which indicates that all young Bengali males are expected to join and support a political party, although I accept there may well be material inducements provided for party membership. The information does not indicate that either the BNP or the Awami League, Bangladesh’s two major political parties, forcibly recruit people to their ranks. If such a practice existed, including in the Applicant’s area, it would represent a serious breach of human rights and it would be reasonable to expect there to be at least some references to it in the media, in reports by human rights NGOs such as Human Rights Watch and Amnesty International, and in reporting by other government agencies such as the United States State Department, the United Kingdom Border Protection Agency and the Bangladesh’s human rights organization Odhikar. These sources provide regular and detailed reporting of many other areas of serious human rights abuse in Bangladesh and there is no apparent reason why enforced membership of the main political parties would not be mentioned if, in fact, it did occur.
·There is, similarly, nothing in the information before the Tribunal to indicate that the outlawed Naxal Bahini movement forces people to join its ranks. The information indicates that the organization, connected with the Indian Naxalite movement, has a small-scale underground presence in Bangladesh with some links to factions of the Bangladesh Communist Party. While it is said to involve itself in criminal activities there are no reports in the information before the Tribunal indicating that it undertakes forced recruitment. I note that in his protection visa application he refers to ‘many active underground groups’ in his area, among which he also mentions ‘Sharbo Hara’ and ‘Ganajudha.’ This is his only reference to other terrorist groups, however, and he does not claim to have had any contact with groups other than Naxal Bahini.
·As put to the Applicant at the hearing, it appears implausible that either the Awami League or the BNP would feel able to place any trust in those whom they had recruited against their will, or that they could be confident of their continuing loyalty. In the case of Naxal Bahini this would appear to involve particular security risks for the organization, given that it is illegal in Bangladesh. The Applicant’s response was to suggest that trust or loyalty was not required, and that he would be given only ‘dirty work’ to perform, by which he apparently meant such illegal and violent tasks as extortion and intimidation. However, I am not satisfied it is plausible that he would be seen as a suitable choice to carry out such work as a person who had no real allegiance to the organization and whose involvement was obtained only through the threat of force. Nor am I satisfied that this consideration would be outweighed by other considerations, such as the fact that he is the oldest male in his family, is young, physically able, intelligent or that he had returned after spending considerable time in the West, as submitted by his advisor.
·Finally, I am not satisfied that the Applicant was, as he claims, living in poverty in his village, or that this made him vulnerable to physical harm from the BNP, Awami League and Naxal Bahini when he allegedly rejected their demands. I accept that his father was elderly, apparently nearly seventy years old when the Applicant was born, and that he gave some of his property to his first wife when he remarried. On the basis of the Applicant’s own evidence, however, his father was able to build a new house for his second family on land he had purchased, continue to operate his farm, educate the Applicant’s siblings and finance the Applicant’s travel to Malaysia. I have considered, but do not accept, his claim that his father was forcibly deprived of his property and expelled from his house by his first wife and the children he had by her, a development which the Applicant was unable to explain at the hearing. As for his situation should he return to Bangladesh he does not claim, and there is nothing to indicate, that he would not have access to his due share of his father’s estate there as the oldest son of the second family. I note that he is single, physically able and still young, that despite his limited education he is able to speak English, and that he has had considerable employment experience as a farmer in Bangladesh and as a machine operator in Malaysia. Given these factors I am not satisfied there is any reason to believe he would be unable to find employment if he were to return to live in his village. I am not satisfied that he would, in fact, live in poverty there or that in this way he would be made vulnerable to harm from the sources he has identified.
19.On the information before the Tribunal I am unable to be satisfied that the Applicant has ever suffered harm in Bangladesh at the hands of the BNP, Awami League, Naxal Bahini or any other group, for rejecting demands to join them or for any other reason. I am not satisfied that on return to his village he would be presented with such demands or harmed if he did not comply. Nor am I satisfied it is plausible that he would be made fearful by any mistaken belief that these groups would approach him with demands that he join them.[35]
[35] CB 174-176 at paras.17-19.
The Tribunal’s finding that the applicant had not been persecuted by the Awami League, BNP and Naxal Bahini in the past, and its refusal to accept that the applicant would face a real chance of forced recruitment, or that the applicant was particularly vulnerable to physical harm from the Awami League, BNP and the Naxal Bahini as a “poor male”, was one which was arrived at after consideration of the applicant’s claims, and is a finding of fact on merits review which this Court will not set aside unless a jurisdictional error is established.[36]
[36] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Minister for Immigration & Multicultural Affairs v Yusuf & Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
A jurisdictional error might be committed by the Tribunal in circumstances where it fails to consider a claim made by an applicant.[37] Where, as here, the Tribunal has set out, assessed and weighed the evidence to arrive at a conclusion of fact, and has done so in circumstances where it has identified the correct issue, not asked a wrong question, had regard to relevant material, and specifically assessed the claim said by the applicant not to have been assessed, it is not for this Court to re-exercise the Tribunal’s fact-finding power. To do so is to conduct a merits review not judicial review.[38] For these reasons the applicant would not be able to establish jurisdictional error in the Tribunal Decision.
[37] Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26.
[38] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration & Citizenship v SZNPG & Anor (2010) 115 ALD 303 at 307-308 per North and Lander JJ; [2010] FCAFC 51 at para.20 per North and Lander JJ.
In all of the above circumstances, the applicant cannot make out an arguable case on the merits of his substantive application to this Court.
Conclusions and orders
In circumstances where the applicant is not able to make out an arguable case on the merits of the substantive application it follows that the application in a case must be dismissed. To do otherwise would result in the Court engaging in the futile exercise of reviewing an application which is not arguable. There will therefore be an order dismissing the application in a case.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 August 2014
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